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4620 (4224) (4722) (4052) (503). Jeofails and amendments.-It shall be no objection to the proceedings of the county court, either in that court or elsewhere, that they are imperfect or inaccurate; and when its proceedings are reviewed on appeal or certiorari, all amendable errors shall be regarded as amended, so as to present only the substantial inquiry of the guilt or innocence of the accused,

Johnson's case, 105 Ala. 114; Tatum's case, 66 Ala. 465; Blankenshire's case, 70 Ala. 10. All amendments allowed which do not introduce a new case, Gandy's case, 81 Ala. 71; Tatum's case, 66 Ala. 465; Perry's case, 78 Ala. 22; Simpson's case, 111 Ala. 6. Amendments should be shown by the record.-Ib. Where affidavit fails to name party assaulted, or prosecutor, and complaint filed on appeal sets out name of such party, there is no variance.-Little's case, 89 Ala. 99.

4621 (4225) (4723) (4053). Issue and return of executions, Executions issued from the county court shall be made returnable to a term of such court six months after the rendition of the judgment upon which the same is issued, and six months shall intervene between the issue and return of any subsequent execution from such

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4622 (4226) (4724) (4054) (504). Appeal to circuit or city court; appeal bond.-In all cases of conviction in the county court, the defendant shall have the right of appeal to the circuit or city court of the county, on entering into bond, with two or more sufficient sureties, to appear at the term of the court to which the appeal is taken, and from term to term until discharged; the bond to be in such penalty as the judge of the county court may prescribe, and to be approved by him.

Appeal cannot be dismissed because county court had adjourned before appeal sued out.-Mobley's case, 53 Ala. 646. Bond is a condition precedent to the exercise of the right of appeal.-Ex parte Reese, 112 Ala. 63.

4623 (4227) (4725) (4055) (505). Transcript, etc., returned to court. When an appeal is taken under the preceding section, the judge of the county court shall make out a copy of all the proceedings had in his court, except the subpoenas for witnesses and the appeal bond, certify the same as correct, and hand the transcript, together with the appeal bond, to the clerk of the circuit or city court, who shall place the same on his trial-docket of criminal cases.

4624 (4228) (4726) (4056) (506). Subpanas for witnesses on appeal. In cases of appeal from the county court, the judge of the court shall issue subpoenas for such witnesses as may be required, both for the state and for the accused, returnable to the next term of the court, to which the appeal is taken; which subpoenas shall be executed by the sheriff and returned to such circuit or city court; and if witnesses so summoned fail to appear and testify as required, they shall be liable to the same penalties, forfeitures and proceedings, as if the subpoenas had been issued out of the circuit or city

court.

4625 (4229) (4727) (4057) (507). Forfeiture of appeal bond; alias warrant of arrest to issue.-If the defendant fails to appear at the circuit or city court as required by the appeal bond, he shall be liable to the same penalties, forfeitures and proceedings, as on a

forfeited bail-bond taken in that court; and a new warrant of arrest may issue from that court, without any other authority therefor. 4626 (4230) (4728) (4058) (508). Arrest on warrant as on capias. Such warrant of arrest must be directed to any sheriff of the State of Alabama; and when the defendant is arrested, he must be dealt with in all respects as if the arrest had been made on capias from. the circuit court.

· 4627 (4231) (4729) (4059) (509). Trial of appeal de novo; statement of cause of complaint.-The trial in the circuit or city court shall be de novo, and without any indictment or presentment by the grand jury; but the solicitor shall make a brief statement of the cause of complaint, signed by him, which may be in the following form:

"The State of Alabama, In the circuit (or city court),—

term,

county. 18. On appeal from the county court. The State of Alabama, by its solicitor, complains of C. D. that, within twelve months before the commencement of this prosecution, he did (here describe the offense as in cases of indictment).

G. H., Solicitor."

Brief statement of the "complaint," signed by the solicitor, is essential to trial on appeal; and proceeding without it, unless waived, is erroneous. Moss's case, 42 Ala. 546. But parties may, by consent, dispense with filing of complaint by solicitor and substitute for it affidavit on which warrant for arrest issued.-Carlisle's case, 76 Ala. 75. This "statement of cause of complaint" is analogous to an information at common law, and may be amended by leave of court.-Tatum's case, 66 Ala. 465. Complaint need not conclude "against the peace and dignity of the state."-Simpson's case, 111 Ala. 6; Thomas's case, 107 Ala. 61. Any inaccuracies or irregularities are amendable, but an absolutely void affidavit will not support a complaint or prosecution. Miles's case, 94 Ala. 106. It is usually sufficient in preparing criminal charges to follow language of statute, but not so if statute does not set out constituents of offense.-Ib. Defendant has constitutional right to demand nature and cause of accusation against him.- Ib. An affidavit which was assailable in justice court, but was not objected to, is amendable on appeal and will support complaint.-Williams's case, 88 Ala. 80; Gandy's case, 81 Ala. 68. Complaint filed by solicitor in county court is amendable on appeal if it does not make a new prosecution.-Perry's case, 78 Ala. 22; Simpson's case, 111 Ala. 6. 4628 (4232) (4730) (4060) (510). Practice, evidence, etc., same as in other cases.-On the trial of such appeals, the court shall be governed by the same rules, as to evidence, practice, finding of the jury, and punishment, as if the case had originated in that court.

any

4629. Forfeiture for failing to hold county court; how recovered. Feb. 6, 1895, p. 402, Any judge of the county court who neglects or fails to hold $1, 2. regular term of such court, or who absents himself before the business of such court is disposed of, forfeits to the county the sum of twenty-five dollars for each day he is thus absent or fails to attend, to be recovered of him and the sureties on his official bond, on five days' notice, in the circuit or city court, upon motion by the solicitor in the name of the county; but such recovery cannot be had if such failure to attend or absence was on account of sickness of such judge or his family, or inevitable accident, or of an epidemic or contagious disease, or well-grounded apprehension thereof.

ARTICLE 4.

Feb. 18.
1891.
p. 1143.

JUSTICES OF THE PEACE, AND PROCEEDINGS BEFORE THEM.

4630 (4283) (4628) (3932) (384). Jurisdiction of justices of the peace.-Justices of the peace have, in their respective counties, concurrently with the county courts, jurisdiction of the following offenses: Violations of Sunday, vagrancy, assaults, assaults and batteries, and affrays, in which no stick or other weapon is used; and, when the value of the commodity which is the subject of the crime does not exceed ten dollars, of larceny, whether at common law, or by statute; obtaining money by false pretenses or token with intent to defraud another, embezzlement, and receiving stolen or embezzled goods, knowing them to be stolen or embezzled; and for failure to work on public road after legal notice, and of offenses for cruelty to animals, and of public drunkenness.

Have jurisdiction of petit larceny concurrent with circuit and city court, when value does not exceed ten dollars, and may sentence to hard labor not exceeding twelve months.-Ex parte Hixon, 41 Ala. 410. No jurisdiction of assaults and batteries with weapons; hence judgment in such offense is void, and no bar to subsequent indictment.-Danzey's case, 68 Ala. 296. No jurisdiction to impose hard labor for non-payment of costs.-Ex parte McKivett, 55 Ala. 236. See ex parte Sam, 51 Ala. 34. Before amendment of statute, had no jurisdiction of offense for cruelty to animals.-Horton's case, 80 Ala. 8. Except preliminary proceeding, no jurisdiction to hear cause out of his beat. Ex parte Davis, 95 Ala. 9. Judgment valid on its face in case of which justice had jurisdiction of person and of offense cannot be assailed, on habeas corpus, by oral proof.-Ib. Jurisdiction of notary public ex officio justice of peace in preliminary proceeding coextensive with justice of peace.-Matthews's case, 96 Ala. 62. Justice has no power to bind defendant over to circuit court in cases of which he has final jurisdiction.-Ex parte Pruitt, 99 Ala. 225.

4631. No jurisdiction to sentence to hard labor for costs.-It shall not be lawful for any justice of the peace, or notary public with the powers of a justice of the peace, to sentence any person to hard labor for the non-payment of costs.

4632 (4234) (759, 4698) (843) (713). Required to keep docket and exhibit it to grand jury; other duties. It is the duty of every justice of the peace and notary public having and exercising the jurisdiction of justices of the peace

1. To keep a docket of all criminal cases tried, which docket shall set forth the nature of each case, the judgment rendered therein, an itemized copy of the bill of costs, by whom and of whom the fine and costs were collected, and the disposition made thereof; and such justice of the peace and notary public must attend in person, or make a report in writing of his docket to the grand jury of his county, for their inspection during each term of the circuit or city court. 2. To perform such other duties as are, or may be required of him by law.

4633 (4235) (4694) (4024) (475). Copy of accusation delivered to defendant on demand.-When a person is arrested and brought before a justice of the peace, charged with a public offense, .of which such justice has jurisdiction under the provisions of this Code, he must be furnished, if he demand it, with a copy of the accusation, as contained in the warrant of arrest.

4634 (4236) (4699) (4028) (479). Forms; same as in county court. The forms for proceedings before the county court, under the provisions of the preceding article, or others substantially the same, may be used by a justice of the peace in cases tried before him..

The initiatory step in criminal proceedings, by which the jurisdiction of a justice of the peace is called into exercise, is a complaint on oath, charging the person named with the commission of a specified offense.-Drake's case, 68 Ala. 510. And all such proceedings before justices in the exercise of enlarged jurisdiction must conform to these statutory provisions.-Ib. Insufficient affidavit as to wantonly killing an animal; when charges no offense, and effect on appeal.-Blankenshire's case, 70 Ala. 10. Affidavit "that he has reason for believing, and does believe," etc., sufficient.-Sale's case, 68 Ala. 530. See citations to section 4600. Affidavit may be amended, but not so as to make a different offense.-Simpson's case, 111 Ala. 6. Affidavit charging assault on "affiant" sufficient.-Little's case, 89 Ala. 99; Gandy's case, 81 Ala. 71; Perry's case, 78 Ala. 22. Affidavit of petit larceny sufficient that sets out name of offense as commonly known, name of defendant, property stolen and owner thereof. Williams's case, 88 Ala. 83. Insufficient affidavit.-Miles's case, 94 Ala. 106; Gandy's case, 81 Ala. 71.

4635 (4237) (4697) (4027) (478). Justice to decide law and facts without jury.-In all trials before a justice of the peace of causes which are within his jurisdiction, he must determine both the law and the facts without the intervention of a jury, and award the punishment which the offense may demand.

May sentence to hard labor not exceeding twelve months.-Ex parte Sam, 51 Ala. 34. But not for costs.-Ex parte McKivett, 55 Ala. 236. Duty of justice under this section.-Ex parte Dunklin, 72 Ala. 241. If justice has jurisdiction of person and offense and defendant does not demand a jury, he must try the case finally-cannot bind over to circuit court.-Ex parte Pruitt, 99 Ala. 225.

4636 (4238) (4695) (4025) (476). Proceedings when defendant demands trial by jury.-If the defendant demands a trial by jury, he must be required to enter into bond, with good sureties, conditioned for his appearance at the next term of the circuit or city court of the county to answer the charge; and, failing to give such bond, must be committed to the county jail until the next term of the circuit or city court having jurisdiction of the offense, unless he elect, in the meantime, to perform hard labor for the county as provided by law.

Justice has no jurisdiction to try a party demanding a jury, but must bind him over, or hold him till next term of circuit court.-Ex parte Dunklin, 72 Ala. 241. If justice has jurisdiction, and defendant does not demand jury, he has no authority to bind over, but must try the cause.-Ex parte Pruitt, 99 Ala. 225.

4637 (4239) (4696) (4026) (477). Trial; continuances.-If the accused and the prosecutor are both present, and also the witnesses for the prosecution and defense, and the accused does not demand a trial by jury, the trial must proceed before the justice, unless, for good cause shown, he continues it to some other day not more than ten days distant.

4638 (4240) (3611, 3614) (3213, 3216) (2774, 2777). Subpoenas and attachments for witnesses.-The justice, on the application of either party, must issue subpoenas for witnesses, stating therein the name of the party by whom the witness is summoned, and the time. and place of trial, which must be executed in the same manner as subpoenas in civil cases; and if any witness duly summoned fails to

As amended Dec. 7.

attend, he may be compelled by attachment to appear and give evidence.

4639 (4241) (3613, 3614) (3215, 3216) (2776, 2777). Proceedings against defaulting witness.—If any witness, duly summoned, fails to attend, a forfeiture may be taken against him and enforced as in civil cases before such justice.

4640 (4242) (4700) (4029) (480). Appeal to circuit or city court; appeal bond.-In cases tried before a justice of the peace, the defendant, if convicted, shall have the right to appeal to the next ensuing term of the circuit or city court of the county, on entering into bond, with sufficient sureties, in such sum as the justice may require, conditioned that he will appear at the court to which the appeal is taken, until discharged by due course of law.

Reeves's case, 96 Ala. 33; Ex parte Reese, 112 Ala. 63.

4641 (4243) (4701) (4030) (481). Appeal; how tried.-The trial 1896, p. 80. in the circuit, city, county or criminal court, on appeal from a judgment rendered by a justice, shall be de novo, and shall be governed in all respects by the rules and regulations prescribed for the trial of appeals from the county court.

CHAPTER 143.

CRIME AGAINST NATURE. 4642, 4643.

4642 (4020) (4191) (3604) (63). Punishment of crime against nature. Any person, who commits a crime against nature, either with mankind or with any beast, must, on conviction, be imprisoned in the penitentiary for not less than two, nor more than ten years. (Form 83.)

Indictment stating defendant, "against the order of nature, attempted carnally to know a certain beast, to wit, a cow," is sufficient.-Bradford's case, 104 Ala. 68. Confessions are prima facie inadmissible, and are never so without proof of the "corpus delicti' aliunde, though direct proof not required. Bradford's case, 104 Ala. 68. Charge as to reasonable doubt and probability of innocence.-Croft's case, 95 Ala. 3.

4643 (4021) (4896) (4194) (642). Proof of crime against nature. To sustain an indictment for crime against nature, proof of emission is unnecessary.

CHAPTER 144.

DEAD BODIES AND GRAVES, OFFENSES CONCERNING. 4644-4649. 4644 (4023) (4193) (3606) (65). Removing dead body from grave. Any person, who from wantonness, or for the purpose of

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